1. ' SALMAN HAMID, J.---Brief facts of the case, for the purposes of this judgment, are that the plaintiff came to know of availability of a double storey bungalow raised and constructed on Plot No,51, Sheet No, CF-1-5, Survey No,19-A/1, Old Survey No,N/1/A P0-22, admeasuring 1603 square yards or thereabouts, located at Old Clifton, Karachi, (hereinafter referred to as the "Suit Property") through an advertisement of a newspaper. The defendant was thus contacted through an architect Mr. Samar Ali Khan who was his brother in law. After a meeting on 9-4-2004 of the plaintiff/ Mr. Zahid Marker and his wife and the defendant at the office of architect, Mr. And Mrs. Marker visited the Suit Property with the architect. Thereafter an offer by way of letter dated .2-4-2004, (Exh.P/1) was sent by the plaintiff to the defendant. Upon receipt of the referred letter, the defendant sent counter offer/proposal dated 13-4-2004, (Exh.P/3) which was followed by an agreement/understanding of the terms of settlement over telephone.Subsequently terms were reduced in writing on the plaintiff's letterhead and were faxed to the defendant the same day (13-4-2004), (Exh.P/4). This fax letter contained a clause, "9. Reza Iqbal to ensure renewal of the lease within agreed time frame at his cost". Upon receipt of the fax letter it was re-faxed by the defendant the same day (Exh.P/5) after signing the same in token of having accepted all the terms and conditions as contained therein and thereby the letter dated 13-4-2004 (Exh. P/5) was converted and/or construed as a sale agreement for the purchase of the suit property. Total sale price/consideration of the suit property was agreed to be Rs,40 million. The defendant prior to the signing of the sale agreement warranted and represented that he was the sole and exclusive owner of the suit property as reflected in letter dated 27-5-2004. After such representation part payment of Rs,1 million to the defendant vide Cheque No,7473039 dated 19-4-2009 (Exh.P/9) was made and, therefore, the plaintiff deemed to have fulfilled its part of the contractual obligation, as were settled in terms of sale agreement dated 13-4-2004. It was also the case of the plaintiff that in terms of the agreement dated 13-4-2004 the defendant ensured the renewal of the lease of the suit property but subsequently failed to take any steps towards such renewal. The plaintiff kept reminding the defendant of his obligations and in such respect also sent letters dated 23-7-2004, 19-8-2004 and 24-8-2004 respectively. According to the plaintiff instead of complying with the terms of the sale agreement, as agreed upon earlier, the defendant's Advocate sent letter dated 31-8-2004, stating therein that the defendant was unable to procure the renewal of the lease but at the same time.
2. Confirmed the execution of sale agreement dated 13-4-2004 between his client and the plaintiff in respect of the suit property and for the first time'instructed the plaintiff to proceed with the agreed purchase of the suit property on "as is where is basis". It was further the case of the plaintiff that the defendant's counsel sent final draft of the sale agreement of the suit property under cover of letter dated 14-5-2004 which was finalized by the plaintiff's counsel and was sent back to the defendant for its execution. However, the defendant, instead of execution of .Sale agreement of the suit property, avoided the same and, therefore, the present suit for specific performance and injunction against the defendant namely Reza Iqbal with the following prayers was filed:--
(1) Direct the defendant to specifically perform his obligations as under the said agreement dated April 13, 2004 by renewing the lease of the subject property immediately; and selling and transferring the subject Property to the plaintiff under the terms of the said agreement;
(2) Permanent injunction restraining the defendant from conveying, selling or transferring in any manner, or creating a false, fictitious tenancy or any third party interest/encumbrance in the subject property except in favour of the plaintiff;
(3) Cost of suit;
(4) Any other relief(s) that this Honourable Court may deem fit and proper under the circumstances.
3. ' Refuting the above contentions of the plaintiff, the defendant filed his written statement in which in the first instance he took preliminary objections by stating that no cause of action was disclosed by the plaintiff and that the plaint contains incorrect facts and/or the facts have been concealed and that inappropriate and incorrect statements have been made. The suit in its present form was not maintainable under the law and that the suit was motivated, false, fabricated and baseless.
4. The plaintiff has come to the Court with unclean hands with mala fide intentions to harass the defendant and that the agreement/contract that was entered into between the parties has been frustrated due to the reasons beyond the contract. Plaintiff being a wilful defaulter in fulfilling its commitment regarding the payment of sale consideration of the suit property on due date is not entitled to specific performance. Besides such preliminary legal objections, it was further urged by the defendant that at no stage of time the defendant had any intention to sell the suit property but since the plaintiff approached with an offer to purchase it for total sale consideration of Rs,40 million, the deal was agreed to be finalized at the later stage and that the plaintiff with full knowledge of the fact that the lease of the suit property was to be renewed had entered into the agreement. However it was denied that the defendant had ever agreed to the renewal of the lease.
5. The deal of the suit Property was contingent upon the renewal of the lease and that final execution of the agreement was to be made thereafter. The defendant accepted faxing of letter dated 12-4- 2004 and its conveyance vide fax letter dated 13-4-2004 but at the same time stated these letters constituted nothing but memorandum of understanding wherein it was contemplated that an agreement was to be entered into within a period as stipulated therein. According to the defendant, the execution of two letters at best could be termed as memorandum of understanding and nothing beyond that and insisted that formal agreement was to be entered into for finalization of the terms and conditions of the sale after renewal of the lease of the suit property.
6. ' In the backdrop of such divergent pleas of the plaintiff and the defendant, following issues were framed by this Court on 11-2-2008:--
(1) Whether the Annexures- "A" and "A-1" to the plaint are forged and fabricated documents?
(2) Whether the defendant agreed to sell the suit property to the plaintiff, if so, on what terms and conditions?
(3) What should the decree be?
7. ' Before discussing the case and giving judgment on the basis of the above issues, it may be stated that though there was no issue with respect to the maintainability of the suit under the provisions of section 69 of the Partnership Act, 1932 which deals with the registration of a firm and its implication if it is not registered upon a suit brought by such firm against third party. The arguments having been advanced by the counsel for the defendant on this section, the counsel for the plaintiff with the consent of the counsel for the defendant produced copy of registered deed of partnership of the plaintiff and supplied copy thereof to the counsel for the defendant. Not only this, the documents which were produced in evidence by the parties would show that the defendant admitted that the plaintiff was a registered firm and therefore the question of maintainability of suit under section 69 of the Partnership Act were not really available to the defendant which only remained academic more particularly when no issue in respect thereof was ever framed by this Court. Such being the position and the fact that the defendant having accepted the plaintiff to be a registered firm and also having agreed to the production of the Deed of Partnership at the time of final arguments no findings are necessitated to be recorded in this judgment on such point.
8. ' Coming to the case and its discussing for the purposes of judgment, the plaintiff, to prove its case got examined P.W.1 Mr. Zahid Marker, P.W.2 Mrs. Shomaila Marker and P.W.3 Mr. Samar Ali Khan while the defendant only got examined himself as. D.W.1 The witnesses were duly cross-examined by the respective counsel whereafter their sides were closed.
9. ' I have heard the learned counsel for the parties and with their assistance perused and gone through the evidence available on record. My finding on the above issues with reasons are as under:-- Issue No,1 Whether the Annexures "A" and "A-1" to the plaint are forged and fabricated documents?
10. ' On this issue the plaintiff/Zahid Marker led his evidence as well as evidence of his wife Shomaila Loan Marker and Samar Ali Khan as P.W.1 P.W.2 and P.W.3 respectively. The plaintiff/P.W.1 was thoroughly cross-examined by the learned counsel for the defendant but nothing came out to show that the two documents Annexures "A" and "A-1" (Exhs.P/4 and P/5) were not executed by the defendant and/or the terms which were settled therein were not agreed upon. It is a matter of record also borne out from Exh.P/9 that as part performance of the contract in respect of the suit property payment of Rs,1 million was received by the defendant from the plaintiff on 19-4-2004 i,e, after the date of documents Exhs.P/4 and P/5 which are of time prior to 19-4-2004. As a matter of fact the defendant in his cross-examination also admitted to have received this payment towards part sale consideration of the suit property from the plaintiff. It was further admitted by the defendant in his cross-examination by stating that "It is correct to suggest that total sale consideration for the suit property was agreed at Rs,40,000,000 (Rupees Forty Million)". It was also agreed as correct in his cross-examination that, "in consideration of sale, the plaintiff gave me Rs, One Million. The cheque of Rs, One Million dated J9th April, 2004 might have been given on the same date. The cheque was sent at Samar Ali Khan's office and Samar Ali Khan forwarded the cheque to me. It was further accepted by the defendant that, "It is correct that the amount of Rs, One Million is still with me" and that, "It is correct that the cheque was encashed on the next day by me"... "It is correct that Exh.D/8 of my Affidavit-in-Evidence was received by me through fax. The fax was sent to Samar Ali Khan's office and Samar Ali Khan's office forwarded this fax to me". "It is correct that Exh.D/9 was sent by me to plaintiff through Samar Ali Khan's Office".... "It would be correct to suggest that Samar Ali Khan's office was being used for exchanging faxes between plaintiff and myself."
11. ' The above admission on the part of the defendant regarding the execution of Annexures A and A-1 (Exh.P/4 and P/5) would clearly establish the fact upon the admission of the defendant that the sale consideration of the suit Property was agreed to be at Rs,40 Million and that after such sale consideration having been determined earnest money of Rs,1 million was also received by the defendant and, therefore, he was obliged to execute and/or to forward the terms of the agreement of its final determination. The defendant himself having admitted in his cross-examination, as reproduced above, the execution of the documents Exhs.P/4 and P/5 it is clear that the same were neither forged nor fabricated document and were result of the negotiations that had been going on between the parties in respect of the suit property. It would also be advantageous to note that Exh.D/11 for final approval was sent in conjunction to Exh.P/4 and. Exh.P/5 and final document for execution purposes (Annexure "E/1" to the plaint) was sent to the defendant by the plaintiff in answer to the draft of sale agreement (Exh.D/11). Despite all this no further progress was made to conclude the deal that had commenced on/or about 12-4-2004. From the discussion of the evidence and admission of the defendant, it becomes clear that Annexures "A" and "A-1" were genuine documents and not forged and fabricated, as alleged by the defendants. This issue is answered accordingly.
12. Issue No,2. Whether the defendant agreed to sell the suit property to the plaintiff, if so, on what terms and conditions?
13. ' From the above discussion it would become clear that indeed the defendant had agreed to sell the suit property which at no stage of time was disputed by him. However, the only bone of contention that remained to be looked into was the aspect of renewal of lease of the suit property.
14. Section 8 of the Contract Act speaks about the acceptance by performing conditions or receiving consideration. The defendant having accepted part sale consideration of Rs,1 million and that too without any reservation from the total sale consideration of Rs,40 million deemed to have received consideration for a promise and was thus an acceptance of the proposal on his part made through Exh.P/4 and Exh.P/5. Despite such acceptance of the part consideration of the full sale consideration in respect of the suit property, the defendant kept lingering on the matter on lame excuse that the lease of the Suit Property which was agreed to be sold by him to the plaintiff, was not made. It may be noteworthy to state that in terms of section 55(g) of the Transfer of Property Act, the defendant was duty bound to pay all public charges and rent accrued due in respect of the property up to the date of sale the interest on all encumbrances on such property due on such date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances on the property then existing. This provision of law would make it abundantly clear that on the date when the plaintiff and defendant had agreed for the sale and purchase of the suit property, it was deemed that the defendant was to pass on clear title to the plaintiff and not otherwise. The defendant having failed to have the lease of the suit property extended despite having received part sale consideration thereof cannot be left unanswerable for such a deviation and/or misrepresentation and has to be put to the condition attached with it. Throughout in his evidence, the defendant has admitted that the payment was received by him towards sale consideration of the suit Property and not only this by way of Exh.D/11 even the draft agreement was sent through his counsel to the plaintiff's counsel for final approval and the agreement Annexure "E/1" was finalized by the plaintiff and was sent to the defendant for its execution.
15. 'All the above events go to show nothing but the fact that the plaintiff was all along ready and willing to perform his part of the contract which for one reason or the other was denied by the defendant. The above events will therefore disclose that the suit property was agreed to be sold/purchased on the terms and conditions as contained in Exh.P/4 and duly accepted by the defendant by accepting the same as reflected in Exh.P/5. This issue is answered in terms of the above discussion.
16. Issue No,3. What should the decree be?
17. ' The evidence of the parties having been discussed in detail and also the arguments advanced by the learned counsel for the parties having been appreciated and the case law cited by them looked into particularly the precedents cited by the counsel for defendant like the case reported in SBLR 2008 Sindh 1789 wherein it was held by this Court that time bound contract with further provisions of penal consequences where time is the essence of the contract is available, the intention of the parties to be gathered from reading the terms of the agreement and looking at such circumstances that this Court was of the opinion that since the plaintiff in that case had not made any effort to perform his part of the contract it was held that specific performance thereof will be highly inequitable to be granted after lapse of a decade when the properties in recent past have shown tremendous increase in valuation. This citation was distinguishable inasmuch as that in the present case the plaintiff had agreed to purchase the Suit Property for his own abode after renovating it. Though it may be true that the value of the properties in recent past have shown increase in value, one cannot overlook the fact that even the cost of construction has also gone up tremendously. Had the deal of the suit property would have been finalized at the relevant time, the plaintiff would have not been confronted with the escalation of the price of construction material which he would have to face at this stage of time inasmuch as that the agreement to sell the suit property has been established. Such being, the position I am of the opinion that it would be highly inappropriate to put any condition on the plaintiff in payment of the balance sale consideration of the suit property. It may also he noteworthy to mention that the amount of Rs,1 million that was received by the defendant at the relevant time was used by the defendant to his benefit and to the detriment of the plaintiff. Other citation relied upon by the learned counsel for the defendant as 1989 CLC 2309, 2002 CLD 218, PLD 1977 Karachi 377, 2000 SCMR 533, 2007 SCMR 1047, PLD 1991 SC 905, PLD 2003 SC 430, 2005 SCMR 1408 speaks about the discretionary power of the Court while granting specific performance of the contract. The discussion above would clearly show that it was the defendant who had shown his slackness in finalization of the contract despite the fact that part sale consideration of the suit property was received by him and the fact that all along the plaintiff was ready and willing to perform his part of the contract. It was because of the acts of omissions and commission on the part of the defendant that the plaintiff had to seek addressal by filing of the present suit for specific performance of the contract and injunction which also prevented by the enjoyment of the suit property till today without any fault at their end. Upshot of the discussion is that the suit of the plaintiff is decreed in terms of prayer clause 1 with the direction to the defendant to specifically perform his obligation under agreement dated 13-4-2004 by renewing the lease of the suit property and sell and transfer the same to the plaintiff under the terms of the said agreement. Parties are left to bear their own cost.